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Digital Estate Planning Case Discussion

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Alberto B. Lopez”
Copyright © 2016 by Savannah Law School; Alberto B. Lopez
In January 2015, a series of essays appeared online under the heading of The End. As one might guess from the ominous title,
the essays address the topic of death from the perspectives of professionals who deal with death, such as physicians and
nurses, and private individuals who share their personal experiences up to and following an individual’s death. One
contributor, for example, revisits a dying friend’s last “attempt at modesty” as the friend tried to pull her shirt down over
exposed portions of her body, as well as the contributor’s “appa lling decision” not to revisit the dying friend’s bedroom for a
final good-bye.? Another author describes feeling “gutted and guilty” for wish ing to return to life instead of serving the
“slavery of disease.” Furthermore, the same author labels the old ada ge about cherishing moments with a dying loved one as
“a lot of crap” because of the hardships imposed by disease and medical treatment. The strik ing thing about a number of the
essays is that they revealsurvivors’ intensely private thoughts in a very public way–on the website of The New York Times.
*78 In addition to the moving personal na rratives, several of the essays in The End highlight the relationship between death
and law on a macro-level in the form of statutory law. In Death Without Dignity, the author considers how the California
Senate’s passage of the End of Life Option Act could have positively affected a friend’s death five years ago. The
sentiments expressed in Death Without Dignity reflect concerns hotly discussed since cases like In re Quinlan, Cruzan v.
Director, Mo. Dep’t of Health, and Bush v. Schiavo propelled the issue of one’s right to die to the forefront of the public’s
consciousness. Recently, California served as the epicenter of the debate as a young Californian, Brittany Maynard, decided
to move to Oregon to take advantage of its Death with Dignity Act after she was diagnosed with a terminal illness.”
Whatever one thinks of her choice, Ms. Maynard’s decision demonstrates the undeniable impact of positive law concerning
death on the decision-making of the living.
For the most part, however, the nexus between death and law operates on a scale far removed from the national glare
associated with contentious public policy issues such as one’s right to die. In The Rituals of Modern Death, a September 2015
addition to The End, a physician describes the contra st between a family’s experience with the moment of death with that of
the physician.” For the family, “death can be a moment of deep emotional significance,” but for the physician, death leads to
“something very mundane: paperwork.”! Much of that post-mortem “mundane paperwork” is required by law. Statutes
require the completion of death certificates that identify the decedent, the location of death, *79 and the cause of death for
evidentiary and statistical purposes.* Virgin ia’s code goes further in its death certificate regulations in that it not only defines
when “[a] person shall be medically and legally dead,” but also mandates that the “medical certification” of death shall be
“signed in black or dark blue ink.”’ Similarly, many states have anatomical gift statutes that regulate organ donation at death.
Illinois law, for example, bars the physician “who determines the time of the decedent’s death” from “participating in the
procedures for removing or transplanting a part from the decedent.”‘? From death certificates to procedures regulating organ
donation, death triggers a cascade of statutorily regulated acts that govern living individuals connected to the decedent.
Unlike regulations that gover the living after a death, one of the basic intersections of death and law occurs before an
individual’s death–the drafting and execution of a will. For the individuals who opt to execute a will,’ the testamentary
intent represented by the will’s distributive provisions largely remains a private matter left to the judgment of the individual
testator.” To *80 effectuate a testa tor’s plan for distribution, a testator appoints a personal representative to handle the tasks
WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.

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